$45,000,000 Series E 6.00% Senior Notes
due January 30, 2012
GULF POWER COMPANY
UNDERWRITING AGREEMENT
January 18, 2002
A.G. Edwards & Sons, Inc.
SunTrust Capital Markets, Inc.
c/o A.G. Edwards & Sons, Inc., as Representative
One North Jefferson
St. Louis, MO 63103
Ladies and Gentlemen:
Gulf Power Company, a Maine corporation (the "Company"),
confirms its agreement (the "Agreement") with A.G. Edwards & Sons, Inc., acting
as the representative (the "Representative") of the underwriters named in
Schedule I hereto (the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), with
respect to the sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of $ 45,000,000 principal amount of the Series E
6.00% Senior Notes due January 30, 2012 (the "Senior Notes") as set forth in
Schedule I hereto.
The Company understands that the Underwriters propose to make
a public offering of the Senior Notes as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered. The Senior Notes will be
issued pursuant to an indenture, dated as of January 1, 1998 (the "Base
Indenture"), by and between the Company and JPMorgan Chase Bank (formerly known
as The Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore
supplemented and amended and as to be further supplemented and amended by a
fifth supplemental indenture, dated as of January 30, 2002, to the Base
Indenture relating to the Senior Notes (the "Supplemental Indenture," and
together with the Base Indenture and any other amendments or supplements
thereto, the "Indenture"), between the Company and the Trustee.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company
represents and warrants to the Underwriters as follows:
(a) A registration statement on Form S-3, as amended (File
Nos. 333-59942, 333-59942-01 and 333-59942-02), in respect of the
Senior Notes and certain other securities has been prepared and
filed in accordance with the provisions of the Securities
Act of 1933, as amended (the "1933 Act"), with the Securities and
Exchange Commission (the "Commission"); such registration
statement, as amended, and any post-effective amendment thereto,
each in the form heretofore delivered or to be delivered to the
Underwriters, has been declared effective by the Commission in
such form (except that copies of the registration statement, as
amended, and any post-effective amendment delivered to the
Underwriters need not include exhibits but shall include all
documents incorporated by reference therein); and no stop order
suspending the effectiveness of such registration statement has
been issued and no proceeding for that purpose has been initiated
or, to the best knowledge of the Company, threatened by the
Commission (any preliminary prospectus, as supplemented by a
preliminary prospectus supplement, included in such registration
statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the 1933 Act,
being hereinafter called a "Preliminary Prospectus"); such
registration statement, as it became effective, including the
exhibits thereto and all documents incorporated by reference
therein pursuant to Item 12 of Form S-3 at the time such
registration statement became effective, being hereinafter called
the "Registration Statement"; the prospectus relating to the
Senior Notes, in the form in which it was included in the
Registration Statement at the time it became effective, being
hereinafter called the "Prospectus"; any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act, as of the
date of such Preliminary Prospectus or Prospectus, as the case
may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include any documents filed after the date of such
Preliminary Prospectus or Prospectus, as the case may be, under
the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and incorporated by reference in such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment to
the Registration Statement shall be deemed to refer to and
include any annual report of the Company filed pursuant to
Section 13(a) or 15(d) of the 1934 Act after the effective date
of the Registration Statement that is incorporated by reference
in the Registration Statement; and the Prospectus as amended or
supplemented in final form by a prospectus supplement relating to
the Senior Notes in the form in which it is filed with the
Commission, pursuant to Rule 424(b) under the 1933 Act in
accordance with Section 3(g) hereof, including any documents
incorporated by reference therein as of the date of such filing,
being hereinafter called the "Final Supplemented Prospectus."
(b) The documents incorporated by reference in the
Registration Statement or Prospectus, when they were filed with
the Commission, complied in all material respects with the
applicable provisions of the 1934 Act and the rules and
regulations of the Commission thereunder, and as of such time of
filing, when read together with the Prospectus, none of such
documents contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Prospectus or any further amendment or supplement thereto, when
such documents are filed with the Commission, will comply in all
material respects with the applicable provisions of the 1934 Act
and the rules and regulations of the Commission thereunder and,
when read together with the Prospectus as it otherwise may be
amended or supplemented, will not contain an untrue statement of
a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the Company makes no warranty or
representation to the Underwriters with respect to: (A) any
statements or omissions made in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters expressly for use in the Final Supplemented
Prospectus; or (B) any information set forth in the Final
Supplemented Prospectus under the captions "Description of the
Series E Senior Notes - Book-Entry Only Issuance -- The
Depository Trust Company" and "The Policy and the Insurer" or in
Appendix A thereto.
(c) The Registration Statement, the Prospectus and the Final
Supplemented Prospectus and any further amendments or supplements
to the Registration Statement or the Prospectus, when any such
post-effective amendments are declared effective or supplements
are filed with the Commission, as the case may be, will comply,
in all material respects with the applicable provisions of the
1933 Act, the 1934 Act, the 1939 Act (hereinafter defined) and
the General Rules and Regulations of the Commission thereunder
and do not and will not, (i) as of the applicable effective date
as to the Registration Statement and any amendment thereto, and
(ii) as of the applicable filing date as to the Final
Supplemented Prospectus and any Prospectus as further amended or
supplemented, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading; except that the Company makes no
warranties or representations with respect to (A) that part of
the Registration Statement which shall constitute the Statements
of Eligibility (Form T-1) (collectively, the "Form T-1") under
the Trust Indenture Act of 1939, as amended (the "1939 Act"), (B)
statements or omissions made in the Registration Statement or the
Final Supplemented Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by the
Underwriters expressly for use therein or (C) any information set
forth in the Final Supplemented Prospectus under the captions
"Description of the Series E Senior Notes - Book-Entry Only
Issuance -- The Depository Trust Company" and "The Policy and the
Insurer" or in Appendix A thereto.
(d) With respect to the Registration Statement, the
conditions for use of Form S-3, as set forth in the General
Instructions thereof, have been satisfied.
(e) Since the respective dates as of which information is
given in the Registration Statement and the Final Supplemented
Prospectus, except as otherwise stated therein, there has been no
material adverse change in the business, properties or financial
condition of the Company.
(f) The Company is a corporation duly organized and existing
under the laws of the State of Maine, is duly qualified to carry
on its business as a foreign corporation under the laws of the
States of Florida, Georgia and Mississippi, and has due corporate
authority to carry on the public utility business in which it is
engaged and to own and operate the properties used by it in such
business, to enter into and perform its obligations under this
Agreement and the Indenture and to issue and sell the Senior
Notes to the Underwriters.
(g) This Agreement has been duly authorized, executed and
delivered by the Company.
(h) The Indenture has been duly authorized by the Company
and, on the Closing Date, will have been duly executed and
delivered by the Company, and, assuming due authorization,
execution and delivery of the Indenture by the Trustee, the
Indenture will, on the Closing Date, constitute a valid and
binding obligation of the Company, enforceable against the
Company in accordance with its terms except to the extent that
enforcement thereof may be limited by (1) bankruptcy, insolvency,
reorganization, receivership, liquidation, fraudulent conveyance,
moratorium or other similar laws affecting creditors' rights
generally or (2) general principles of equity (regardless of
whether enforcement is considered in a proceeding at law or in
equity) (the "Enforceability Exceptions"); the Indenture will
conform in all material respects to all statements relating
thereto contained in the Final Supplemented Prospectus; and, on
the Closing Date, the Indenture will have been duly qualified
under the 1939 Act.
(i) The issuance and delivery of the Senior Notes have been
duly authorized by the Company and, on the Closing Date, the
Senior Notes will have been duly executed by the Company and,
when authenticated in the manner provided for in the Indenture
and delivered against payment therefor as described in the Final
Supplemented Prospectus, will constitute valid and legally
binding obligations of the Company, enforceable against the
Company in accordance with their terms, except to the extent that
enforcement thereof may be limited by the Enforceability
Exceptions, will be in the form contemplated by, and entitled to
the benefits of, the Indenture and will conform in all material
respects to all statements relating thereto in the Final
Supplemented Prospectus.
(j) The execution, delivery and performance by the Company
of this Agreement, the Indenture and the Senior Notes and the
consummation by the Company of the transactions contemplated
herein and therein and compliance by the Company with its
obligations hereunder and thereunder shall have been duly
authorized by all necessary corporate action on the part of the
Company and do not and will not result in any violation of the
charter or bylaws of the Company, and do not and will not
conflict with, or result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company is a party or by
which it may be bound or to which any of its properties may be
subject (except for conflicts, breaches or defaults which would
not, individually or in the aggregate, be materially adverse to
the Company or materially adverse to the transactions
contemplated by this Agreement), or (B) any existing applicable
law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or
foreign, or any regulatory body or administrative agency or other
governmental body having jurisdiction over the Company, or any of
its properties.
(k) The Company has duly authorized all necessary action to
be taken by it for the procurement of an irrevocable financial
guarantee insurance policy (the "Insurance Policy") issued by
Ambac Assurance Corporation (the "Insurer"), insuring the payment
of principal and interest on the Senior Notes, when due.
(l) No authorization, approval, consent or order of any
court or governmental authority or agency is necessary in
connection with the issuance and sale by the Company of the
Senior Notes or the transactions by the Company contemplated in
this Agreement, except (A) such as may be required under the 1933
Act or the rules and regulations thereunder; (B) such as may be
required under the Public Utility Holding Company Act of 1935, as
amended; (C) the qualification of the Indenture under the 1939
Act; (D) the approval of the Florida Public Service Commission
(the "Florida Commission"); and (E) such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
________________________________________________________
(a) On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter, severally and
not jointly, agrees to purchase from the Company, the principal amount of
Senior Notes set forth in Schedule I to this Agreement opposite the name of such
Underwriter (plus any additional amount of Senior Notes that such Underwriter
may become obligated to purchase pursuant to the provisions of Section 10
hereof), at a price equal to 97.90% of the principal amount thereof.
(b) Payment for and delivery of certificates for the Senior
Notes shall be made at the offices of Troutman Sanders LLP, Bank of America
Plaza, 600 Peachtree Street, N.E., Atlanta, Georgia at 10:00 A.M., Atlanta time,
on January 30, 2002 (unless postponed in accordance with the provisions of
Section 10) or such other time, place or date as shall be agreed upon by the
Underwriters and the Company (such time and date of payment and delivery being
herein called the "Closing Date"). Payment shall be made to the Company by wire
transfer in federal funds at the Closing Date against delivery of the Senior
Notes to the Representative. It is understood that each Underwriter has
authorized the Representative, for its account, to accept delivery of, receipt
for, and make payment of the principal amount of the Senior Notes which it has
agreed to purchase. The Representative, individually and not as Representative
of the Underwriters, may (but shall not be obligated to) make payment of the
principal amount of the Senior Notes to be purchased by any Underwriter whose
payment has not been received by the Closing Date, but such payment shall not
relieve such Underwriter from its obligations hereunder.
The delivery of the Senior Notes shall be made in fully
registered form, registered in the name of CEDE & CO., to the offices of The
Depository Trust Company in New York, New York or its designee, and the
Underwriters shall accept such delivery.
The certificate(s) for the Senior Notes will be made available
for examination by the Underwriters not later than 12:00 Noon, New York time, on
the last business day prior to the Closing Date.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants
with the Underwriters as follows:
(a) The Company, on or prior to the Closing Date, will
deliver to the Underwriters conformed copies of the Registration
Statement as originally filed and of all amendments thereto,
heretofore or hereafter made, including any post-effective
amendment (in each case including all exhibits filed therewith,
and including unsigned copies of each consent and certificate
included therein or filed as an exhibit thereto, except exhibits
incorporated by reference, unless specifically requested). As
soon as the Company is advised thereof, it will advise the
Representative orally of the issuance of any stop order under the
1933 Act with respect to the Registration Statement, or the
institution of any proceedings therefor, of which the Company
shall have received notice, and will use its best efforts to
prevent the issuance of any such stop order and to secure the
prompt removal thereof, if issued. The Company will deliver to
the Representative sufficient conformed copies of the
Registration Statement, the Prospectus and the Final Supplemented
Prospectus and of all supplements and amendments thereto (in each
case without exhibits) for distribution to the Underwriters and,
from time to time, as many copies of the Prospectus and the Final
Supplemented Prospectus as the Underwriters may reasonably
request for the purposes contemplated by the 1933 Act or the 1934
Act.
(b) The Company will furnish the Underwriters with copies of
each amendment and supplement to the Final Supplemented
Prospectus relating to the offering of the Senior Notes in such
quantities as the Underwriters may from time to time reasonably
request. If, during the period (not exceeding nine months) when
the delivery of a prospectus shall be required by law in
connection with the sale of any Senior Notes by an Underwriter,
any event relating to or affecting the Company, or of which the
Company shall be advised in writing by the Underwriters, shall
occur, which in the opinion of the Company or of Underwriters'
counsel should be set forth in a supplement to or an amendment of
the Final Supplemented Prospectus, as the case may be, in order
to make the Final Supplemented Prospectus not misleading in the
light of the circumstances when it is delivered, or if for any
other reason it shall be necessary during such period to amend or
supplement the Final Supplemented Prospectus or to file under the
1934 Act any document incorporated by reference in the
Preliminary Prospectus or Prospectus in order to comply with the
1933 Act or the 1934 Act, the Company forthwith will (i) notify
the Underwriters to suspend solicitation of purchases of the
Senior Notes and (ii) at its expense, make any such filing or
prepare and furnish to the Underwriters a reasonable number of
copies of a supplement or supplements or an amendment or
amendments to the Final Supplemented Prospectus which will
supplement or amend the Final Supplemented Prospectus so that, as
supplemented or amended, it will not contain any untrue statement
of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the
circumstances when the Final Supplemented Prospectus is
delivered, not misleading or which will effect any other
necessary compliance. In case any Underwriter is required to
deliver a prospectus in connection with the sale of any Senior
Notes after the expiration of the period specified in the
preceding sentence, the Company, upon the request of such
Underwriter, will furnish to such Underwriter, at the expense of
such Underwriter, a reasonable quantity of a supplemented or
amended prospectus, or supplements or amendments to the Final
Supplemented Prospectus, complying with Section 10(a) of the 1933
Act. During the period specified in the second sentence of this
subsection, the Company will continue to prepare and file with
the Commission on a timely basis all documents or amendments
required under the 1934 Act and the rules and regulations
thereunder; provided, that the Company shall not file such
documents or amendments without also furnishing copies thereof
prior to such filing to the Underwriters and Dewey Ballantine
LLP.
(c) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Senior Notes for offering and sale
under the applicable securities laws of such states and the other
jurisdictions of the United States as the Underwriters may
designate; provided, however, that the Company shall not be
obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified or to file a consent to service
of process or to file annual reports or to comply with any other
requirements in connection with such qualification deemed by the
Company to be unduly burdensome.
(d) The Company will make generally available to its
security holders as soon as practicable but not later than 45
days after the close of the period covered thereby, an earnings
statement of the Company (in form complying with the provisions
of Rule 158 of the rules and regulations under the 1933 Act)
covering a twelve-month period beginning not later than the first
day of the Company's fiscal quarter next following the "effective
date" (as defined in Rule 158) of the Registration Statement.
(e) During a period of 15 days from the date of this
Agreement, the Company will not, without the Underwriters' prior
written consent, directly or indirectly, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, any
Senior Notes or any security convertible into or exchangeable
into or exercisable for the Senior Notes or any debt securities
substantially similar to the Senior Notes (except for the Senior
Notes issued pursuant to this Agreement).
(f) As soon as practicable after the date of this Agreement,
and in any event within the time prescribed by Rule 424 under the
1933 Act, the Company will file the Final Supplemented Prospectus
with the Commission and will advise the Representative of such
filing and will confirm such advice in writing.
SECTION 4. PAYMENT OF EXPENSES. The Company will pay
all expenses incidental to the performance of its obligations under this
Agreement, including but not limited to, the expenses of (i) the printing and
filing of the Registration Statement as originally filed and of each
amendment thereto, (ii) the preparation, issuance and delivery of the
certificate(s) for the Senior Notes, (iii) the fees and disbursements of the
Company's counsel and accountants, (iv) the qualification of the Senior Notes
under securities laws in accordance with the provisions of Section 3(c) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of any blue sky survey (such fees and disbursements of counsel shall not exceed
$3,500), (v) the printing and delivery to the Underwriters of copies of the
Registration Statement as originally filed and of each amendment thereto and of
the Prospectus, the Final Supplemented Prospectus, and any amendments or
supplements thereto, (vi) the printing and delivery to the Underwriters
of copies of any blue sky survey, (vii) the fee of the National Association of
Securities Dealers, Inc. in connection with its review of the offering
contemplated by this Agreement, if applicable, (viii) the fees and expenses
of the Trustee, including the fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Senior Notes, (ix) any fees payable in
connection with the rating of the Senior Notes, (x) the cost and charges of
any transfer agent or registrar, (xi) the premium payable to the Insurer in
connection with the issuance of the Insurance Policy, and (xii) the cost of
qualifying the Senior Notes with The Depository Trust Company.
Except as otherwise provided in Section 9 hereof, the
Underwriters shall pay all other expenses incurred by them in connection with
their offering of the Senior Notes including fees and disbursements of their
counsel, Dewey Ballantine LLP.
SECTION 5. CONDITIONS OF NDERWRITERS' OBLIGATIONS. The
obligations of the Underwriters to purchase and pay for the Senior Notes are
subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect on the Closing Date and no proceedings
for that purpose shall be pending before, or to the knowledge of the
Company threatened by, the Commission on such date. If filing of the
Final Supplemented Prospectus, or any supplement thereto, is required
pursuant to Rule 424, the Final Supplemented Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424.
(b) Any required orders of the Florida Commission and the Commission
permitting the transactions contemplated hereby substantially in
accordance with the terms and conditions hereof shall be in full force
and effect and shall contain no provision unacceptable to the
Underwriters or the Company (but all provisions of such order or
orders heretofore entered, copies of which have heretofore been
delivered to the Underwriters, are deemed acceptable to the
Underwriters and the Company and all provisions of such order or
orders hereafter entered shall be deemed acceptable to the
Underwriters and the Company unless within 24 hours after receiving a
copy of any such order any party to this Agreement shall give notice
to the other parties to the effect that such order contains an
unacceptable provision).
(c) On the Closing Date the Underwriters shall have received:
(1) The opinion, dated the Closing Date, of Beggs & Lane, a Registered
Limited Liability Partnership, general counsel for the Company,
substantially in the form attached hereto as Schedule II-A.
(2) The opinion, dated the Closing Date, of Troutman Sanders LLP,
counsel for the Company, substantially in the form attached hereto as
Schedule II-B.
(3) The opinion, dated the Closing Date, of Cravath, Swaine & Moore,
counsel to the Trustee, substantially in the form attached hereto as
Schedule III.
(4) The opinion, dated the Closing Date, of Dewey Ballantine LLP,
counsel for the Underwriters, substantially in the form attached hereto as
Schedule IV.
(5) The opinion, dated the Closing Date, of counsel to the Insurer,
substantially in the form attached hereto as Schedule V.
(6) At the Closing Date, there shall not have been, since the date
hereof or since the respective dates as of which information is given in
the Registration Statement and the Final Supplemented Prospectus, any
material adverse change in the business, properties or financial condition
of the Company, whether or not arising in the ordinary course of business,
and the Underwriters shall have received a certificate of the President or
any Vice President of the Company, and dated as of the Closing Date, to the
effect that (i) there has been no such material adverse change, (ii) the
representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the
Closing Date, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied on or
prior to the Closing Date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceedings for that purpose have been initiated or, to the knowledge of
the Company, threatened by the Commission.
(7) On the Closing Date, the Underwriters shall have received from
Arthur Andersen LLP a letter dated the Closing Date to the effect that: (A)
they are independent public accountants with respect to the Company within
the meaning of the 1933 Act and the rules and regulations under the 1933
Act; (B) in their opinion, the financial statements audited by them and
incorporated by reference in the Final Supplemented Prospectus comply as to
form in all material respects with the applicable accounting requirements
of the 1934 Act and the rules and regulations under the 1934 Act; and (C)
on the basis of certain limited procedures performed through a specified
date not more than five business days prior to the date of such letter,
namely (i) reading the minute books of the Company; (ii) performing the
procedures specified by the American Institute of Certified Public
Accountants ("AICPA") for a review of interim financial information as
described in Statement on Auditing Standards No. 71, "Interim Financial
Information", on the unaudited financial statements, if any, of the Company
incorporated in the Final Supplemented Prospectus and of the latest
available unaudited financial statements of the Company, if any, for any
calendar quarter subsequent to the date of those incorporated in the Final
Supplemented Prospectus; and (iii) making inquiries of certain officials of
the Company who have responsibility for financial and accounting matters
regarding such unaudited financial statements or any specified unaudited
amounts derived therefrom (it being understood that the foregoing
procedures do not constitute an audit performed in accordance with
generally accepted auditing standards and they would not necessarily reveal
matters of significance with respect to the comments made in such letter,
and accordingly that Arthur Andersen LLP make no representations as to the
sufficiency of such procedures for the Underwriters' purposes), nothing
came to their attention that caused them to believe that: (1) any material
modifications should be made to the unaudited condensed financial
statements, if any, incorporated in the Final Supplemented Prospectus, for
them to be in conformity with generally accepted accounting principles; (2)
such unaudited condensed financial statements do not comply as to form in
all material respects with the applicable accounting requirements of the
1934 Act as it applies to Form 10-Q and the related published rules and
regulations thereunder; (3) the unaudited amounts for Operating Revenues,
Earnings Before Interest and Income Taxes and Net Income After Dividends on
Preferred Stock and the unaudited Ratio of Earnings to Fixed Charges set
forth in the Final Supplemented Prospectus do not agree with the amounts
set forth in or derived from the unaudited financial statements for the
same period or were not determined on a basis substantially consistent with
that of the corresponding audited amounts or ratios included or
incorporated by reference in the Registration Statement; (4) as of a
specified date not more than five business days prior to the date of
delivery of such letter, there has been any change in the capital stock or
long-term debt of the Company or any decrease in net assets as compared
with amounts shown in the latest audited balance sheet incorporated in the
Final Supplemented Prospectus, except in each case for changes or decreases
which (i) the Final Supplemented Prospectus discloses have occurred or may
occur, (ii) are occasioned by the declaration of dividends, (iii) are
occasioned by draw-downs under existing pollution control financing
arrangements, (iv) are occasioned by draw-downs and regularly scheduled
payments of capitalized lease obligations, (v) are occasioned by the
purchase or redemption of bonds or stock to satisfy mandatory or optional
redemption provisions relating thereto, or (vi) are disclosed in such
letter; and (5) the unaudited amounts for Operating Revenues, Earnings
Before Interest and Income Taxes and Net Income After Dividends on
Preferred Stock and the unaudited Ratio of Earnings to Fixed Charges for
any calendar quarter subsequent to those set forth in (3) above, which if
available shall be set forth in such letter, do not agree with the amounts
set forth in or derived from the unaudited financial statements for the
same period or were not determined on a basis substantially consistent with
that of the corresponding audited amounts or ratios included or
incorporated by reference in the Final Supplemented Prospectus.
(8) On the Closing Date, counsel for the Underwriters shall have been
furnished with such documents and opinions as it may reasonably require for
the purpose of enabling it to pass upon the issuance and sale of the Senior
Notes as herein contemplated and related proceedings, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Senior
Notes as herein contemplated shall be satisfactory in form and substance to
the Underwriters and Dewey Ballantine LLP, counsel for the Underwriters.
(9) That no amendment or supplement to the Registration Statement or
the Final Supplemented Prospectus filed subsequent to the date of this
Agreement (including any filing made by the Company pursuant to Section 13
or 14 of the 1934 Act) shall be unsatisfactory in form to Dewey Ballantine
LLP or shall contain information (other than with respect to an amendment
or supplement relating solely to the activity of the Underwriters) which,
in the reasonable judgment of the Representative, shall materially impair
the marketability of the Senior Notes.
(10) The Company shall have performed its obligations when and as
provided under this Agreement.
(11) Evidence that the Insurance Policy has been issued by the Insurer
and confirmation that the Senior Notes have been rated at least Aaa by
Moody's Investor Services, Inc. and at least AAA by Standard & Poor's
Ratings Services, a Division of The McGraw-Hill Companies.
If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company at any time prior
to the Closing Date, and such termination shall be without liability of any
party to any other party except as provided in Sections 4, 7 and 9(b)
hereof.
SECTION 6. CONDITIONS OF THE OBLIGATIONS OF THE COMPANY.
The obligations of the Company shall be subject to the
conditions set forth in the first sentence of Section 5(a) and in Section 5(b).
In case such conditions shall not have been fulfilled, this Agreement may be
terminated by the Company by mailing or delivering written notice thereof to the
Underwriters. Any such termination shall be without liability of any party to
any other party except as otherwise provided in Sections 4, 7 and 9(b) hereof.
SECTION 7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each of the
Underwriters and each person, if any, who controls any such Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act,
against any and all losses, claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the 1933 Act, 1934 Act or
otherwise, and to reimburse any such Underwriter and such controlling person or
persons, if any, for any legal or other expenses incurred by them in connection
with defending any actions, insofar as such losses, claims, damages, liabilities
or actions arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement, the Prospectus or the Final Supplemented Prospectus or,
if the Company shall furnish to the Underwriters any amendments or any
supplements thereto, or shall make any filings pursuant to Section 13 or 14 of
the 1934 Act which are incorporated therein by reference, in any Preliminary
Prospectus, the Registration Statement, the Prospectus or the Final Supplemented
Prospectus as so amended or supplemented, r arise out of or are based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or actions arise out
of or are based upon any such untrue statement or alleged untrue statement or
omission or alleged omission which was made in such Registration Statement,
Preliminary Prospectus, Prospectus or Final Supplemented Prospectus in reliance
upon and in conformity with information furnished in writing to the Company by
the Underwriters for use therein and except that this indemnity with respect to
the Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus,
if the Company shall have furnished any amendment or supplement thereto, shall
not inure to the benefit of any Underwriter (or of any person controlling such
Underwriter) on account of any losses, claims, damages, liabilities or actions
arising from the sale of the Senior Notes to any person if a copy of the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus
(exclusive of documents incorporated therein by reference pursuant to Item 12 of
Form S-3), as the same may then be amended or supplemented, shall not have been
sent or given by or on behalf of such Underwriter to such person with or prior
to the written confirmation of the sale involved and the untrue statement or
alleged untrue statement or omission or alleged omission was corrected in the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus as
supplemented or amended at the time of such confirmation. Each Underwriter
agrees, within ten days after the receipt by it of notice of the commencement of
any action in respect of which indemnity may be sought by it, or by any person
controlling it, from the Company on account of its agreement contained in this
Section 7, to notify the Company in writing of the commencement thereof but the
omission of such Underwriter so to notify the Company of any such action shall
not release the Company from any liability which it may have to such Underwriter
or to such controlling person otherwise than on account of the indemnity
agreement contained in this Section 7. In case any such action shall be brought
against an Underwriter or any such person controlling such Underwriter and such
Underwriter shall notify the Company of the commencement thereof as above
provided, the Company shall be entitled to participate in (and, to the extent
that it shall wish, including the selection of counsel, to direct) the defense
thereof, at its own expense. In case the Company elects to direct such defense
and select such counsel, any Underwriter or controlling person shall have the
right to employ its own counsel, but, in any such case, the fees and expenses of
such counsel shall be at the expense of such Underwriter or such controlling
person unless the employment of such counsel has been authorized in writing by
the Company in connection with defending such action. No indemnifying party
shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification may be sought hereunder (whether or not the indemnified party is
an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include any statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party. In no event shall any
indemnifying party have any liability or responsibility in respect of the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim effected without its prior
written consent.
(b)Each Underwriter agrees severally and not jointly, to indemnify
and hold harmless the Company, its directors and such of its officers who have
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20(a) of the
1934 Act to the same extent and upon the same terms as the indemnity agreement
of the Company set forth in Section 7(a) hereof, but only with respect to
alleged untrue statements or omissions made in the Registration Statement, the
Preliminary Prospectus, the Prospectus or the Final Supplemented Prospectus, or
such documents as amended or upplemented, in reliance upon and in conformity
with information furnished in writing to the Company by such Underwriter for use
therein.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in
this Agreement, or contained in certificates of officers of the Company
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by, or on behalf of the Company and shall survive
delivery of the Senior Notes to the Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) The Representative may terminate this Agreement, by notice to
the Company, at any time at or prior to the Closing Date if (i) trading in
securities on the New York Stock Exchange shall have been generally suspended,
(ii) minimum or maximum ranges for prices shall have been generally established
on the New York Stock Exchange by the Commission or by the New York Stock
Exchange, (iii) a general banking moratorium shall have been declared by federal
or New York State authorities, or (iv) there shall have occurred any outbreak or
escalation of major hostilities in which the United States is involved, any
declaration of war by the United States Congress or any other substantial
national or international calamity or emergency affecting the United States, in
any such case provided for in clauses (i) through (iv) with the result that, in
the reasonable judgement of the Representative, the marketability of the Senior
Notes shall have been materially impaired.
(b) If this Agreement shall be terminated by the Representative
pursuant to subsection (a) above or because of any failure or refusal on
the part of the Company to comply with the terms or to fulfill any of the
conditions of this Agreement, or if for any reason he Company shall be
unable to perform its obligations under this Agreement, then in any such
case, the Company will reimburse the Underwriters for the reasonable fees
and disbursements of Dewey Ballantine LLP and for the out of pocket expenses
(in an amount not exceeding $10,000) reasonably incurred by the Underwriters
in making preparations for the purchase, sale and delivery of the Senior Notes
and, upon such reimbursement, the Company shall be absolved from any further
liability hereunder, except as provided in Sections 4 and 7.
SECTION 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS
If one or more of the Underwriters shall fail on the Closing
Date to purchase the Senior Notes that it or they are obligated to purchase
under this Agreement (the "Defaulted Securities"), the non-defaulting
Underwriters shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, the non-defaulting Underwriters shall not have completed
such arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not
exceed 10% of the Senior Notes, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof
in the proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10%
of the Senior Notes, this Agreement shall terminate without liability on the
part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Final Supplemented Prospectus or in any other documents or
arrangements.
SECTION 11. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to A.G. Edwards & Sons, Inc., One North
Jefferson, St. Louis, Missouri 63103, Attention: Corporate Debt Syndicate Desk;
notices to the Company shall be mailed to One Energy Place, Pensacola, Florida
32520-0100, Attention: Corporate Secretary, with a copy to Southern Company
Services, Inc., 270 Peachtree Street, N.W., Atlanta, Georgia 30303, Attention:
Christopher J. Kysar.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon the Underwriters, the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the Company and their respective successors and the
controlling persons and officers and directors referred to in Section 7 and
their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Underwriters and
the Company and their respective successors, and said controlling persons
and officers and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Senior Notes from the Underwriters shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York
applicable to agreements made and to be performed in said State. Except as
otherwise set forth herein, specified times of day refer to New York City
time.
SECTION 14. COUNTERPARTS. This Agreement may be executed by any one or
more of the parties hereto in any number of counterparts, each of which
shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GULF POWER COMPANY
By: ______________________________
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written
A.G. EDWARDS & SONS, INC.
as Representative of the Underwriters
By:___________________________
Title:
SCHEDULE I
Principal Amount of
NAME OF UNDERWRITER Senior Notes
A.G. Edwards & Sons, Inc. 37,500,000.00
SunTrust Capital Markets, Inc. 7,500,000.00
TOTAL 45,000,000.00
Schedule II-A
[Letterhead of Beggs & Lane]
__________, 2002
A.G. Edwards & Sons, Inc.
SunTrust Capital Markets, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, MO 63103
GULF POWER COMPANY
Series E ____% Senior Notes
due January 30, 2012
Ladies and Gentlemen:
We have acted as general counsel to Gulf Power Company (the
"Company") in connection with (i) the Company's issuance of $45,000,000
aggregate principal amount of its Series E ______% Senior Notes due January 30,
2012 (the "Notes") pursuant to a Senior Note Indenture dated as of January 1,
1998, by and between the Company and JPMorgan Chase Bank (formerly known as The
Chase Manhattan Bank), as trustee (the "Trustee"), as heretofore supplemented
and as further supplemented by the Fifth Supplemental Indenture dated as of
__________, 2002 (collectively, the "Indenture"); and (ii) the purchase by you
of the Notes pursuant to the terms of an Underwriting Agreement dated _______,
2002, among the Company and you (the "Underwriters") (the "Underwriting
Agreement"). This opinion is being delivered to you pursuant to Section 5(c)(1)
thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-_____, 333-______and
333-______) pertaining to the Notes (the "Registration Statement") filed under
the Securities Act of 1933, as amended (the "Act"), and the prospectus dated
________, 2001 as supplemented by a final prospectus supplement dated
__________, 2002 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December 31, 2000, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended ____________ and the Current Reports on Form
8-K of the Company dated __________ (the "Exchange Act Documents"), each as
filed under the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
We have also examined the opinion of Troutman Sanders LLP to
you of even date with respect to matters relating to the Act, the Exchange Act,
the Trust Indenture Act of 1939, as amended and to the applicable rules and
regulations of the Commission under said Acts and in expressing the opinions
stated herein, with respect to such matters, we are relying on such opinion.
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Georgia law and the federal law of the United States upon the opinion dated the
date hereof rendered to you by Troutman Sanders LLP, and relying as to matters
of New York law upon the opinion dated the date hereof rendered to you by Dewey
Ballantine LLP, that:
1. The Company has been duly organized and is validly existing and in
good standing as a corporation under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi, and has due corporate authority
to carry on the public utility business in which it is engaged and to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and the sale of the Notes; the issuance and the sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity; and the Notes conform as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended (the "Trust Indenture Act").
We have not independently verified the accuracy, completeness or
fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in
paragraphs 4 and 5 above. In the course of the preparation by the Company
of the Registration Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, we participated in conferences with certain
officers and employees of the Company, with other counsel for the Company
and with representatives of Arthur Andersen LLP. Based upon our examination
of the Registration Statement, the Final Supplemented Prospectus and the
Exchange Act Documents, our investigations made in connection with the
preparation of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents and our participation in the
conferences referred to above, (i) we are of the opinion that the
Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of __________, complied as to form in all
material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission,
complied as to form in all material respects with the relevant requirements
of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case we express no opinion as to
the financial statements or other financial or statistical data contained
or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents, and (ii) nothing
came to our attention which gives us reason to believe that the
Registration Statement, as of its effective date (including the Exchange
Act Documents on file with the Commission as of such date), contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) contains any untrue statement
therein of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that in each case we
express no opinion or belief with respect to the financial statements or
other financial or statistical data contained or incorporated by reference
in the Registration Statement, the Final Supplemented Prospectus or the
Exchange Act Documents and with respect to information set forth in the
Final Supplemented Prospectus under the captions "Description of the Series
E Senior Notes - Book-Entry Only Issuance - The Depository Trust Company"
and "The Policy and the Insurer" or in Appendix A thereto.
We are members of the State Bar of Florida and we do not express any
opinion herein concerning any law other than the law of the States of
Maine, Florida and Mississippi and, to the extent set forth herein, the
laws of the States of Georgia and New York and the federal law of the
United States.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other
purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Troutman Sanders LLP and Dewey
Ballantine LLP may rely on this opinion in giving their opinions pursuant
to the Underwriting Agreement insofar as such opinions relate to matters of
Maine, Florida and Mississippi law.
Yours very truly,
BEGGS & LANE
Schedule II-B
[Letterhead of TROUTMAN SANDERS LLP]
__________, 2002
A.G. Edwards & Sons, Inc.
SunTrust Capital Markets, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, MO 63103
GULF POWER COMPANY
Series E ____% Senior Notes
due January 30, 2012
Ladies and Gentlemen:
We have acted as counsel to Gulf Power Company (the "Company")
in connection with (i) the Company's issuance of $45,000,000 aggregate principal
amount of its Series E _____% Senior Notes due January 30, 2012 (the "Notes")
pursuant to a Senior Note Indenture dated as of January 1, 1998, by and between
the Company and JPMorgan Chase Bank (formerly known as The Chase Manhattan
Bank), as trustee (the "Trustee"), as heretofore supplemented and as further
supplemented by the Fifth Supplemental Indenture dated as of ________, 2002
(collectively, the "Indenture"); and (ii) the purchase by you of the Notes
pursuant to the terms of an Underwriting Agreement dated _____, 2002 among the
Company and you (the "Underwriting Agreement"). This opinion is being delivered
to you pursuant to Section 5(c)(2) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-_____, 333-______and 333-______
) pertaining to the Notes (the "Registration Statement") filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated
___________, 2001 as supplemented by a final prospectus supplement dated
__________, 2002 (the "Final Supplemented Prospectus"), which pursuant to Form
S-3 incorporates by reference the Annual Report on Form 10-K of the Company for
the fiscal year ended December, 31, 2000, the Quarterly Reports on Form 10-Q of
the Company for the quarters ended ____________ and the Current Reports on Form
8-K of the Company dated _________ (the "Exchange Act Documents"), each as filed
under the Securities Exchange Act of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the
certificates representing the Notes, of which we have examined a specimen), and
we have made such other and further investigations as we deemed necessary to
express the opinions hereinafter set forth. In such examination, we have assumed
the genuineness of all signatures, other than those of the Company, the legal
capacity of natural persons, the authenticity of all documents submitted to us
as originals, the conformity to original documents of all documents submitted to
us as certified or photostatic copies, and the authenticity of the originals of
such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to collectively as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as to matters of
Maine, Florida and Mississippi law upon the opinion dated the date hereof
rendered to you by Beggs & Lane, a Registered Limited Liability Partnership
("Beggs & Lane"), and relying as to matters of New York law upon the opinion
dated the date hereof rendered to you by Dewey Ballantine LLP, that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maine, is duly
qualified to carry on its business as a foreign corporation under the laws of
the States of Florida, Georgia and Mississippi and has due corporate authority
to carry on the public utility business in which it is engaged, to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of the
Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents or other authorizations or approvals of the
Florida Public Service Commission and the Commission legally required for the
issuance and sale of the Notes have been obtained; such orders are sufficient
for the issuance and sale of the Notes; the issuance and sale of the Notes
conform in all material respects with the terms of such orders; and no other
order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and delivered by
the Company and, assuming the due authorization, execution and delivery thereof
by the Trustee, constitutes a valid and legally binding instrument of the
Company, enforceable against the Company in accordance with its terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Indenture may be limited by bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to or affecting creditors' rights
generally and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law); and the
Indenture conforms as to legal matters in all material respects to the
description thereof in the Final Supplemented Prospectus.
5. The Notes have been duly authorized and executed by the Company and,
when authenticated by the Trustee in the manner provided in the Indenture and
delivered to and paid for by the Underwriters pursuant to the Underwriting
Agreement, will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, subject to the
qualifications that the enforceability of the Company's obligations under the
Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust Indenture Act
of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with other counsel for the Company, with representatives of Arthur Andersen LLP
and with your counsel. Based upon our examination of the Registration Statement,
the Final Supplemented Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents and
our participation in the conferences referred to above, (i) we are of the
opinion that the Registration Statement, as of its effective date, and the Final
Supplemented Prospectus, as of _______________, complied as to form in all
material respects with the requirements of the Act and the applicable rules and
regulations of the Commission thereunder and that the Exchange Act Documents, as
of their respective dates of filing with the Commission, complied as to form in
all material respects with the relevant requirements of the Exchange Act and the
applicable rules and regulations of the Commission thereunder, except that in
each case we express no opinion as to the financial statements or other
financial or statistical data contained or incorporated by reference in the
Registration Statement, the Final Supplemented Prospectus or the Exchange Act
Documents, and (ii) nothing came to our attention which gives us reason to
believe that the Registration Statement, as of its effective date (including the
Exchange Act Documents on file with the Commission as of such date), contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Final Supplemented Prospectus (including the
Exchange Act Documents) contains any untrue statement of a material fact or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that in each case we express no opinion or belief with
respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the captions
"Description of the Series E Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company" and "The Policy and the Insurer" or in Appendix A
thereto.
We are members of the State Barof Georgia and we do not express any
opinion herein concerning any law other than the law of the State of
Georgia and the federal law of the United States and, to the extent set
forth herein, the laws of the States of Maine, Florida, Mississippi and New
York.
This opinion is rendered to you in connection with the above-described
transaction. This opinion may not be relied upon by you for any other
purpose, or relied upon by or furnished to any other person without our
prior written consent, except that Beggs & Lane may rely on this opinion in
giving its opinion pursuant to the Underwriting Agreement insofar as such
opinion relates to matters of Georgia law and the federal law of the United
States and Dewey Ballantine LLP may rely on this opinion in giving its
opinion pursuant to the Underwriting Agreement insofar as such opinion
relates to matters of Georgia law.
Yours very truly,
TROUTMAN SANDERS LLP
Schedule III
[Letterhead of Cravath, Swaine & Moore]
__________ __, 2002
Edwards & Sons, Inc.
SunTrust Capital Markets, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, MO 63103
Gulf Power Company
500 Bayfront Parkway
Pensacola, Florida 32520
Ambac Assurance Corporation
1 State Street Plaza
New York, New York 10004
Gulf Power Company
Series E ____% Senior Notes
due January 30, 2012
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank (formerly
known as The Chase Manhattan Bank) (the "Bank") in connection with (a) the
Senior Note Indenture, dated as of January 1, 1998 as heretofore supplemented
(the "Original Indenture"), between Gulf Power Company (the "Company") and the
Bank, as Trustee, and (b) the Fifth Supplemental Indenture dated as of January ,
2002 (together with the Original Indenture, herein called the "Indenture"),
between the Company and the Bank, as Trustee.
In that connection, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
records and other instruments as we have deemed necessary or appropriate for the
purpose of this opinion, including copies of the Indenture and certain
resolutions adopted by the Board of Directors of the Bank.
Based upon the foregoing, we are of the opinion that:
i) the Bank has been duly incorporated and is validly
existing as a banking corporation in good standing under the laws
of the State of New York;
ii) the Bank has the corporate trust power and authority to
execute, deliver and perform its duties under the Indenture, has
duly executed and delivered the Indenture, and, insofar as the
laws governing the trust powers of the Bank are concerned and
assuming due authorization, execution and delivery thereof by the
Company, the Indenture constitutes a legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance
with its terms subject to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other laws
affecting creditors' rights generally from time to time in effect
and to general principles of equity (including, without
limitation, concepts of materiality, reasonableness, good faith
and fair dealing), regardless of whether considered in a
proceeding in equity or at law;
iii) the execution, delivery and performance by the Bank of
the Indenture do not conflict with or constitute a breach of the
charter or bylaws of the Bank; and
iv) no approval, authorization or other action by, or filing
with, any governmental authority of the United States of America
or the State of New York having jurisdiction over the trust
powers of the Bank is required in connection with the execution
and delivery by the Bank of the Indenture or the performance by
the Bank of its duties thereunder, except such as have been
obtained, taken or made.
We are admitted to practice only in the State of New York, and
we express no opinion as to matters governed by any laws other than the laws of
the State of New York and the Federal law of the United States of America. We
are furnishing this opinion to you solely for your benefit. This opinion is not
to be relied upon by any other person or used, circulated, quoted or otherwise
referred to for any other purpose.
Very truly yours,
CRAVATH, SWAINE & MOORE
Schedule IV
[Letterhead of DEWEY BALLANTINE LLP]
__________ __, 2002
A.G. Edwards & Sons, Inc.
SunTrust Capital Markets, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, MO 63103
GULF POWER COMPANY
Series E ____% Senior Notes
due January 30, 2012
Ladies and Gentlemen:
We have represented you (the "Underwriters") in connection
with (i) the issuance by Gulf Power Company (the "Company") of $45,000,000 of
its Series E _____% Senior Notes (the "Notes") pursuant to a Senior Note
Indenture dated as of January 1, 1998, by and between the Company and JPMorgan
Chase Bank (formerly known as The Chase Manhattan Bank), as trustee (the
"Trustee"), as heretofore supplemented and as further supplemented by the Fifth
Supplemental Indenture dated as of __________ __, 2002 (collectively, the
"Indenture"); and (ii) the purchase by you of the Notes pursuant to the terms of
an Underwriting Agreement dated ________________, 2002, among the Company and
the Underwriters (the "Underwriting Agreement"). This opinion is being delivered
to you pursuant to Section 5(c)(4) thereof.
All capitalized terms not otherwise defined herein shall have
the meanings set forth in the Underwriting Agreement.
In rendering the opinions expressed below, we have examined
the registration statement on Form S-3 (Nos. 333-_____, 333-_____ and 333-______
) pertaining to the Notes (the "Registration Statement"), filed under the
Securities Act of 1933, as amended (the "Act"), and the prospectus dated
________, 2001, as supplemented by a final prospectus supplement dated
_________, which pursuant to Form S-3 incorporates by reference the Annual
Report on Form 10-K of the Company for the fiscal year ended December 31, 2000,
the Quarterly Reports on Form 10-Q of the Company for the quarters ended
_________, and the Current Reports on Form 8-K of the Company dated __________
(the "Exchange Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
In addition, we have examined, and have relied as to matters
of fact upon, the documents delivered to you at the closing (except the Notes,
of which we have examined a specimen), and we have made such other and further
investigations as we deemed necessary to express the opinions hereinafter set
forth. In such examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such latter documents.
The Indenture and the Underwriting Agreement are herein
referred to as the "Agreements".
Based upon the foregoing, and subject to the qualifications
and limitations stated herein, we are of the opinion, relying as aforesaid and
as to all matters covered hereby which are governed by or dependent upon the
laws of the States of Maine, Florida and Mississippi upon the opinion of Beggs &
Lane, a Registered Limited Liability Partnership ("Beggs & Lane"), dated the
date hereof and addressed to you and as to all matters covered hereby which are
governed by or dependent upon the laws of the State of Georgia upon the opinion
of Troutman Sanders LLP dated the date hereof and addressed to you, that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of Maine,
is duly qualified to carry on its business as a foreign corporation in the
States of Florida, Georgia and Mississippi, and has due corporate authority to
carry on the public utility business in which it is engaged and to own and
operate the properties used by it in such business and to enter into and perform
its obligations under the Agreements and the Notes.
2. The execution, delivery and performance by the Company of
the Underwriting Agreement have been duly authorized by all necessary corporate
action, and the Underwriting Agreement has been duly executed and delivered by
the Company.
3. All orders, consents, or other authorizations or approvals
of the Florida Public Service Commission and the Commission legally required for
the issuance and sale of the Notes have been obtained; such orders are
sufficient for the issuance and sale of the Notes; the issuance and sale of the
Notes conform in all material respects with the terms of such orders; and no
other order, consent or other authorization or approval of any Florida or United
States governmental body (other than in connection or in compliance with the
provisions of the securities or "blue sky" laws of any jurisdiction, as to which
we express no opinion) is legally required for the issuance and sale of the
Notes in accordance with the terms of the Underwriting Agreement.
4. The Indenture has been duly authorized, executed and
delivered by the Company and, assuming the due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally binding
instrument of the Company, enforceable against the Company in accordance with
its terms, subject to the qualifications that the enforceability of the
Company's obligations under the Indenture may be limited by bankruptcy,
insolvency, reorganization, moratorium and other similar laws relating to or
affecting creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law); and the Indenture conforms as to legal matters in all
material respects to the description thereof in the Final Supplemented
Prospectus.
5. The Notes have been duly authorized and executed by the
Company and, when authenticated by the Trustee in the manner provided in the
Indenture and delivered to and paid for by the Underwriters pursuant to the
Underwriting Agreement, will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their terms, subject
to the qualifications that the enforceability of the Company's obligations under
the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors' rights generally and
by general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law); and the Notes conform as to
legal matters in all material respects to the description thereof in the Final
Supplemented Prospectus.
6. The Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended.
We have not independently verified the accuracy, completeness
or fairness of the statements made or included in the Registration Statement,
the Final Supplemented Prospectus or the Exchange Act Documents and take no
responsibility therefor, except as and to the extent set forth in paragraphs 4
and 5 above. In the course of the preparation by the Company of the Registration
Statement, the Final Supplemented Prospectus and the Exchange Act Documents, we
participated in conferences with certain officers and employees of the Company,
with representatives of Arthur Andersen LLP and with counsel to the Company.
Based upon our examination of the Registration Statement, the Final Supplemented
Prospectus and the Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the Final Supplemented
Prospectus and our participation in the conferences referred to above, (i) we
are of the opinion that the Registration Statement, as of its effective date,
and the Final Supplemented Prospectus, as of ___________, complied as to form in
all material respects with the requirements of the Act and the applicable rules
and regulations of the Commission thereunder and that the Exchange Act
Documents, as of their respective dates of filing with the Commission, complied
as to form in all material respects with the relevant requirements of the
Exchange Act and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion as to the financial
statements or other financial or statistical data contained or incorporated by
reference in the Registration Statement, the Final Supplemented Prospectus or
the Exchange Act Documents, and (ii) nothing came to our attention which gives
us reason to believe that the Registration Statement, as of its effective date
(including the Exchange Act Documents on file with the Commission as of such
date), contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or that the Final Supplemented Prospectus
(including the Exchange Act Documents) contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that in each case we express no opinion or belief
with respect to the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration Statement, the Final
Supplemented Prospectus or the Exchange Act Documents and with respect to
information set forth in the Final Supplemented Prospectus under the captions
"Description of the Series E Senior Notes - Book-Entry Only Issuance - The
Depository Trust Company" and "The Policy and the Insurer" or in Appendix A
thereto.
We are members of the State Bar of New York and we do not
express any opinion herein concerning any law other than the law of the State of
New York and the federal law of the United States, and to the extent set forth
herein, the law of the States of Maine, Florida, Mississippi and Georgia.
This opinion is rendered solely to you in connection with the
above matter. This opinion may not be relied upon by you for any other purpose
or relied upon by or furnished to any other person without our prior written
consent except that Beggs & Lane and Troutman Sanders LLP may rely on this
opinion in giving their opinions pursuant to Section 5 of the Underwriting
Agreement, insofar as such opinions relate to matters of New York law, and
Troutman Sanders LLP may rely on this opinion in giving its opinion pursuant to
Sections 102, 302 and 904 of the Indenture, insofar as such opinion relates to
matters of New York law.
Very truly yours,
DEWEY BALLANTINE LLP
Schedule V
[Letterhead of Insurer's counsel]
__, 2002
A.G. Edwards & Sons, Inc.
SunTrust Capital Markets, Inc.
c/o A.G. Edwards & Sons, Inc.
One North Jefferson
St. Louis, MO 63103
GULF POWER COMPANY
Series E ____ % Senior Notes
due January 30, 2012
Ladies and Gentlemen:
This opinion has been requested of the undersigned, a Vice
President and an Assistant General Counsel of Ambac Assurance Corporation, a
Wisconsin stock insurance company ("Ambac Assurance"), in connection with the
issuance by Ambac Assurance of a certain Financial Guaranty Insurance Policy and
endorsement thereto, effective as of the date hereof (the "Policy"), insuring
$45,000,000 in aggregate principal amount of the Gulf Power Company (the
"Issuer") Series E _ % Senior Notes due January 30, 2012 (the "Senior Notes").
In connection with my opinion herein, I have examined the
Policy, such statutes, documents and proceedings as I have considered necessary
or appropriate under the circumstances to render the following opinion,
including, without limiting the generality of the foregoing, certain statements
contained in the Prospectus Supplement dated __, 2002 to the Prospectus of the
Issuer dated __, 200_ relating to the Obligations (the "Prospectus Supplement")
under the headings "The Policy and the Insurer" and "Appendix A - Form of
Policy."
Based upon the foregoing and having regard to legal
considerations I deem relevant, I am of the opinion that:
1. Ambac Assurance is a stock insurance company duly organized
and validly existing under the laws of the State of Wisconsin
and duly qualified to conduct an insurance business in the
State of Mississippi.
2. Ambac Assurance has full corporate power and authority to
execute and deliver the Policy and the Policy has been duly
authorized, executed and delivered by Ambac Assurance and
constitutes a legal, valid and binding obligation of Ambac
Assurance enforceable in accordance with its terms except to
the extent that the enforceability (but not the validity) of
such obligation may be limited by any applicable bankruptcy,
insolvency, liquidation, rehabilitation or other similar law
or enactment now or hereafter enacted affecting the
enforcement of creditors' rights.
3. The execution and delivery by Ambac Assurance of the Policy
will not, and the consummation of the transactions
contemplated thereby and the satisfaction of the terms thereof
will not, conflict with or result in a breach of any of the
terms, conditions or provisions of the Certificate of
Authority, Articles of Incorporation or By-Laws of Ambac
Assurance, or any restriction contained in any contract,
agreement or instrument to which Ambac Assurance is party or
by which it is bound or constitute a default under any of the
foregoing.
4. Proceedings legally required for the issuance of the Policy
have been taken by Ambac Assurance and licenses, orders,
consents or other authorizations or approvals of any
governmental boards or bodies legally required for the
enforceability of the Policy have been obtained; any
proceedings not taken and any licenses, authorizations or
approvals not obtained are not material to the enforceability
of the Policy.
5. The statements contained in the Prospectus Supplement under
the heading "The Policy and the Insurer", insofar as such
statements constitutes summaries of the matters referred to
therein, accurately reflect and fairly present the information
purported to be shown and, insofar as such statements describe
Ambac Assurance, fairly and accurately describe Ambac
Assurance. The form of Policy contained in the Prospectus
Supplement under the heading "Appendix A - Form of Policy" is
a true and complete copy of the form of Policy.
Very truly yours,
Vice President and
Assistant General Counsel